M.K. Gandhi, Attorney at Law

by DiSalvo, Charles R.

A BAD FIRST EXPERIENCE: GUILT BY ASSOCIATION?

  The year began with what one must conclude was a shock for Gandhi. The lawyer with whom he chose to practice, Percy Evans Coakes, was revealed to be a cheat, a liar, and a disgrace to the profession. That Coakes would find himself in public ethical trouble should have been at least somewhat predictable. Coakes’ work life seems to have had one and only one purpose: to make as much money as possible. In this single-minded pursuit, his practice appears to have embraced questionable areas—for example, he mixed a rather unsavory money-lending business with his practice of law.1 Then, too, Coakes’ moral and ethical lapses in 1895 might have been brought on, in part or whole, by the distraction of his father’s lingering illness and painful death in late 1894.2

  Coakes’ troubles grew out of his representation of the defendant in the case of Kate Hillary v. T. B. MacKenzie, in the course of which representation Coakes appears to have engaged in a number of deceptions designed to protect his own financial interests.

  Coakes’ behavior propelled the opposing attorney to seek from the Supreme Court an investigation into Coakes’ conduct. The Court turned the matter over to the Law Society, which, at a hearing before the Court on March 26, 1895, disclosed its findings. It reported that Coakes had “knowingly and deliberately defied” a court injunction, had deceived his opposing party in the case, and had acted in a manner that frustrated the operation of the judicial system. In Coakes’ defense his attorney, Farman, made the feeble argument that Coakes, who had been appearing in Natal courts nearly seven full years, was “still young in years.”

  While the society’s lawyer, Henry Bale, appeared uncomfortable prosecuting a colleague—disciplinary actions for ethics violations were something of a novelty in Natal at this time—the court flatly rejected Farman’s preposterous argument. Chief Justice Gallwey remarked that Coakes’ actions were ones “no honest man could approve of, and which no professional man could follow.”

  At the conclusion of the hearing, the Court unanimously agreed to suspend Gandhi’s partner from the practice of law for six months.3

  The same public that observed Coakes being punished for dishonesty and deception surely was now predisposed to make certain unwelcome conclusions about his law partner, as well. Gandhi’s conduct would almost always be internally regulated by his highly scrupulous conscience. With Coakes’ dishonorable behavior a matter of official record and public conversation, there would now be external pressure as well.

  OPPOSING THE CROWN: TRIAL BY ERROR

  During the time Coakes was being investigated and prosecuted by the Law Society, Gandhi was busy being boxed around in Durban’s courts. On February 13, 1895, he appeared in defense of an indentured Indian named Arookian who was being charged with housebreaking and theft. The victim was the family of Reverend and Mrs. W. M. Douglas, in whose service Arookian was employed as a cook. The prosecution’s case was built on less than strong evidence. The Crown had no eyewitnesses and no evidence directly tying Arookian to the crime. The Crown’s case rested entirely on the facts that the crime appeared to have been an inside job and that Arookian, being in the employ of the family and in debt to a money lender,4 was familiar with the layout of the house and had a motive to commit the crime.

  Reverend Douglas testified for the prosecution first, describing how a window, through which entrance had been gained, appeared to have been unlocked by a person who had earlier been inside the house. He also described finding both his cashbox emptied of its approximately £7 in contents and a screwdriver apparently used to pry it open.

  The first rule of cross-examination is to cross-examine only when doing so will aid one’s case. Gandhi actually helped his opponent with his cross-examination of Douglas. From him he elicited the information that the family had found Arookian to be dishonest and that, given the construction of the house, the crime must have been committed by someone familiar with its layout.

  After Mrs. Douglas testified, Gandhi, not satisfied with the stinging he had just received from her husband, stood up to cross-examine again. After obtaining a helpful concession from the witness that other Indians had been in the house on occasion, the effect of this point was lost when Gandhi’s next questions resulted in the witness telling the court that she suspected that previous thefts of eggs, milk, and fowls had been committed by this same servant Arookian. The cashbox crime was simply the first one she felt she could prove.

  The Crown then called several other witnesses. Gandhi wisely chose to limit the damage he was doing to his own case by forgoing any further cross-examination. When it came time for the defendant to present his case, Gandhi declined to put his client on the stand and, in fact, presented no evidence at all. Judging by the support, albeit limited, for Gandhi’s client in the final verdict, Gandhi’s closing argument must have been at least somewhat effective in contending that the prosecution’s case was too weak on which to convict. The damage, however, had been done. The jury returned after a fifteen-minute deliberation with a 7–2 verdict in favor of the Crown. Gandhi’s client, Arookian, was sentenced to a term of imprisonment of two years.

  Why didn’t Gandhi put any proof on? Why didn’t he call his client to the stand to testify in his own behalf? The answer is obvious: Arookian was guilty. Gandhi appears to have rested his case on the argument that the government had failed to prove his client’s guilt—not that he was innocent. For a scrupulous Gandhi, such a defense allowed him to avoid speaking untruths. Having to hide the full truth about his criminal clients, however, appears to have been so uncomfortable for Gandhi that it contributed to his doing few ordinary criminal cases after 1895.

  CONFRONTING MR. JUSTICE WRAGG

  Shortly after losing the Arookian case, Gandhi suffered through a very public belittling.

  An Indian, Hassan Dawje, had died without leaving a will. Fredric Tatham, the lawyer for the estate, did not know how “Mohammedan law” (as Islamic law was then termed) called for the property in the estate to be distributed under this circumstance. Chief Justice Gallwey stepped in and suggested to Tatham that he call on Gandhi and some Muslim clerics to advise him. The plan suggested by Gandhi was approved by the master in the case, but when Tatham presented the plan of distribution to the Court for its approval,5 Justice Wragg—the justice who had initially opposed Gandhi’s admission to the bar—took the occasion to publicly belittle Gandhi. Here is how the Natal Witness reported the dialogue between Wragg and Tatham on March 22, 1895:

  Wragg: . . . Mr. Ghandi [sic] knows nothing of Mohammedan law. He is as great a stranger to Mohammedan law as a Frenchman. For what he has stated he would have to go to a book as you would; of his own knowledge he knows nothing.

  Mr. Tatham said that a plan of distribution had been obtained from the priests and from Mr. Ghandi. Where else they were to go he did not know. . . .

  Wragg: The portion which Mr. Ghandi states should go to the brother of the deceased, should, according to Mahommedan Law, go to the poor. Mr. Ghandi is a Hindoo and knows his own faith, of course, but he knows nothing of Mohammedan law.6

  Gandhi, undoubtedly recalling Wragg’s hostility to him in the bar admission case,7 did not sit still for this public humiliation. With his legal acumen attacked in the press by a prominent figure, and already in the process of having his reputation sullied by his association with the about-to-be-suspended Coakes, he struck back forcefully and publicly. In a letter to the Natal Mercury Gandhi defended his position. He divided his defense into two parts. First, he took up the question of role. In the colloquy between Tatham and Wragg, Wragg had perceived a difference between Gandhi’s interpretation of the law and that of the Mohammedan priests whom Tatham had also consulted; Wragg had then told Tatham that the priests’ interpretation should be followed over Gandhi’s. In responding, Gandhi attributed to Wragg a notion implicit in the justice’s position: that only a Mohammedan could render an expert opinion on Mohammedan law. Gandhi, showing a great deal of courage in publicly taking on a sitting Supreme Court justice, th
en held this notion up to ridicule: “Were I a Mohammedan, I should be very sorry to be judged by a Mohammedan whose sole qualification is that he is born a Mohammedan. It is a revelation that . . . Mohammedans know the law intuitively, and that a non-Mohammedan never dare give an opinion on a point of Mohammedan law.”

  Having disposed of this issue, Gandhi then dealt with the substantive question of Mohammedan law. He attacked Wragg and defended his own position on all fronts by setting forth a list of authoritative points of law and fact. Gandhi concluded his statement with a policy argument: “It will be a manifest hardship if the portions rightly belonging to the relations of a deceased Mahommedan [sic] are to be locked up until they can show that ‘they represent the poor’—a condition never contemplated by the law or sanctioned by Mahommedan usage.”8

  Because Gandhi’s argument was economical, forceful, well organized, authoritative, and comprehensive, it was highly persuasive, bringing even a European columnist for the Mercury to his defense. We can attribute Gandhi’s excellent work to a talent for writing solid legal arguments—a skill that stood in sharp contrast to his lack of agility in the courtroom—and to the desire he must have had, during this time of his partner’s very public troubles, to sharply distinguish himself from Coakes.

  Wragg never responded.

  CHALLENGING THE POLICE

  Fresh from his public relations triumph over Wragg, but simultaneously with the embarrassing ethics prosecution of Coakes, Gandhi undertook a civil action for damages against a police officer that carried both racial and political implications. The plaintiff whom he represented, Ismail Hajee Adam, was a storekeeper who procured his merchandise at a Durban fruit auction. On one occasion of his attendance, Ismail earned the ire of the European auctioneers when he persisted in nodding, winking, and speaking in ways that led the auctioneers to believe he was bidding, when in fact he was not. Despite warnings from the auctioneers to cease this behavior, Ismail engaged in it three times on one day in March 1895. The auctioneers grew weary of this conduct. The assistant auctioneer, F. A. Pearce, testified that “on the third occasion”—despite Ismail’s protestations that he had not bid—“the bananas were knocked down to him.” Pearce then asked the plaintiff to pay the shilling that he appeared to have bid. The plaintiff refused.

  At this point, the stories of the parties diverge strictly on racial lines. Gandhi elicited the testimony of the plaintiff, who swore that he had bid only 10 pence, not a shilling. When he refused to pay, said the plaintiff, the auctioneers called in the defendant, Police Constable Tuohy, who forcibly removed the plaintiff’s coat, which contained money, and his hat.9 Later, Tuohy “took hold of [Ismail’s] throat and called him by an opprobrious epithet.” For these acts Gandhi sued Tuohy on Ismail’s behalf for £53—£3 for money that was in the coat and never returned and £50 as “compensation for assault and insult to his religious tenets.”10

  The story of how Tuohy came into possession of the plaintiff’s clothing was completely different as rendered by the defendant and his witnesses. The defendant called European witnesses who testified that Ismail had peaceably surrendered his clothing and that Tuohy had used no force.

  There the case rested for a week. When it resumed, Gandhi and Tuohy’s lawyer, Palmer, had a surprise for the magistrate—they had settled. The defendant would return the hat and coat and pay the plaintiff a nominal amount—one shilling. Each party would bear his own costs.

  There is reason to believe that Gandhi settled because he saw that he was going to lose before the magistrate. Every European witness had testified against Gandhi’s Indian client. Gandhi had solely Indian witnesses, who were generally regarded as untruthful by European colonists. As it turned out, Gandhi’s decision to settle was the right one. The press later reported that Dillon was prepared to give costs, and presumably judgment, to the defendant when the parties settled.11 Palmer, unbeknownst to him, had beaten Gandhi in court, but he had miscalculated. The victory belonged to an opponent who, while perhaps less talented than Palmer in the courtroom, was the shrewder of the two.

  DEFYING THE RAILWAY: NO WOOD, NO WORK

  Many of the cases Gandhi handled throughout the South African fall and winter of 1895 were equally undemanding, perhaps as a deliberate matter so that Gandhi might be as free as possible to work against the Indian Immigration Law Amendment Bill, then pending in the Natal Legislative Assembly, and for the rights of British Indians in the South African Republic cities of Pretoria and Johannesburg.12 In April and May he continued his representation of creditors against small debtors, represented a few Indians who were charged by the police with making a racket with their drums,13 and appeared in a bankruptcy case in which he failed to properly prepare some paperwork. His trouble in the bankruptcy case should have shown Gandhi that routine cases were not without their dangers for a novice advocate, but he failed to learn this lesson the first time around. Just a few months later Gandhi was publicly embarrassed when the press reported that he had filed a divorce application that showed his ignorance of an elemental point of divorce law.14 He had made a basic mistake typical of beginners. Gandhi, usually meticulous, would learn to be even more careful.

  This series of low-level cases experienced two significant interruptions during the winter of 1895. The first concerned labor matters. As historian Maureen Swan indicates, prior to 1909–1910, collective action by Indian workers was infrequent.15 The year 1895 constituted a small, but important exception. It had been the custom of the Natal Government Railway to furnish its Indian employees with cooking fuel. When the railway decided to cut its costs by substituting coal for firewood, the workers found that they could not easily light the coal for lack of kindling. Frustrated, on May 17, 1895, the workers liberated a quantity of wood from the railway yard and were in the process of taking it home when they were noticed and arrested by the police. A melee of some sort followed, with a few police officers allegedly suffering injuries. When the workers’ leaders were hauled into court the following day, about a hundred of their co-workers assembled outside the courthouse and threatened to encamp there until their leaders were released.

  The Protector of Immigrants supported the workers. He described the workers’ plight to Magistrate Dillon in sympathetic terms, stating, “For 17 days past they had been without means of cooking their food.” Dillon responded in equally sympathetic terms, agreeing with the Protector that the men were “labouring under an enormous grievance.” While he found them “clearly guilty of taking that which they had no right to take, and afterwards behaving improperly to the police,” he released them without “any punishment whatever.”16

  Apparently, the railway did not immediately concede, for the next day the workers felt it necessary to engage in a short, but successful strike when 250 of them left their jobs and marched to the office of the Protector of Immigrants to protest the railway’s failure to supply them with firewood. There they lodged their complaint and stated their intention to remain away from work until their demands were met. The railway pledged that it would supply the workers with firewood at once, at which point the rejoicing workers returned to their posts.

  It is unclear whether Gandhi acted as counsel to the workers in these matters. In his long letter to the Natal Advertiser complaining about the paper’s inaccurate coverage of the first firewood episode, it is unclear whether he had represented the Indians in court, but he does report so much of the court dialogue as to indicate that he was at least present as an observer, if not as the workers’ advocate.17 What is more important is that Gandhi was on hand to observe the transforming power of disobedience. He would undergo other formative experiences that would shape his views on the power of disobedience to create social change; the courageous railway workers, however, can lay claim to having planted the seed of the idea in Gandhi.

  This lesson was extended a month later when Gandhi did represent the workers, this time in a dispute over the amount of rations to which they claimed to be entitled. Two hundred fifty railway w
orkers left their jobs on June 25, 1895, and marched once more to the office of the Protector of Immigrants to complain of their treatment. They were arrested and charged with violating Law 25 of 1891, which barred employees from leaving work in a body, for which the penalty was a fine of £2 or a maximum of two months’ jail time. Gandhi, as he had done in other cases, tried to smooth things over by suggesting that with a postponement of the hearing the case could be resolved as a private matter between the workers and the railway officials.

  The magistrate in this case was not the understanding Dillon but Resident Magistrate Gould Lucas. He declined the invitation to permit the parties to settle, stating that the defendants had been brought before him for a violation of the law and he “could not go behind the law.” Alfie Hammond, head of labor for the railway, agreed with Lucas, saying that he “did not feel disposed to withdraw the charges.”

  Lucas asked Gandhi whether the men would deny the charges. Gandhi could have put the Crown to its proof, as he had done in Arookian. He did not. This was not an ordinary criminal case. Lucas offered the Indians leniency in the form of a sentence of a 1 shilling fine or three days in jail. In a move that would foreshadow Gandhi’s own typical reaction to charges of disobedience some years later, he instructed his clients to plead guilty as charged, and the whole body of men marched off to the jail, refusing to pay the fine and insisting on jail time instead. After accomplishing their mission of demonstrating their resolve and simultaneously putting a scare into the authorities as to how they would cope with this massive influx of prisoners whom they would have to bed and feed for three days, the men paid their fines. Satisfied with the magistrate’s assurance that the railway would provide more generous rations, and having accomplished the change they set out to effect, the men returned to work that day—and Gandhi had another lesson in the power of disobedience.